City of Sequim v. Malkasian

• Decision Date: 13 July 2006
• Docket Number: No. 74987-6.,74987-6.
• Court: Washington Supreme Court
• Parties: CITY OF SEQUIM, a noncharter code city and a municipal corporation of the State of Washington, by and through its city council, Respondent, v. Paul MALKASIAN, circulator, sponsor and presenter of an initiative and a referendum petition to the Sequim City Council, Petitioner.

138 P.3d 943

157 Wn.2d 251

CITY OF SEQUIM, a noncharter code city and a municipal corporation of the State of Washington, by and through its city council, Respondent, v. Paul MALKASIAN, circulator, sponsor and presenter of an initiative and a referendum petition to the Sequim City Council, Petitioner.

No. 74987-6.

Supreme Court of Washington, En Banc.

Argued January 13, 2005.

Decided July 13, 2006.

COPYRIGHT MATERIAL OMITTED

Peter J. Eglick, Eglick Kiker Whited PLLC, Seattle, for Petitioner/Appellant.

Craig Andrew Ritchie, Ritchie Law Firm, Port Angeles, for Appellee/Respondent.

Sandra Lynn Cohen, Seattle City Attorneys Office, Seattle, for Amicus Curiae Washington State Association of Municipal Attorneys.

MADSEN, J.

¶ 1 This case requires the court to review a procedural tangle. Prior to an election, the city of Sequim acting through its city council, sought a declaratory judgment that a proposed initiative, the Ratepayer's Responsibility Act, was beyond the scope of initiative power of the residents of Sequim, Washington. The trial court disagreed with the city, granted summary judgment in favor of the defendant, Paul Malkasian, and ordered the initiative placed on the ballot. Although the city appealed, the Court of Appeals declined to stay the trial court's ruling and the election went forward. As a result, eight years later, no appellate court has reviewed the merits of the trial court's ruling.

¶ 2 Contrary to the claim of an overwrought dissent, the issue here is not whether Malkasian is a "hapless private citizen" or the city of Sequim, with a population of under 5,000, is a bully with unlimited resources.¹ The dissent's characterization of this case only further clouds the issues presented in this review. It is time for clarity.

¶ 3 As will be discussed below, the initiative proposed by Malkasian impermissibly contravened authority given to Sequim's city council enabling that elected body to finance important public projects, favored by the residents of Sequim, through the sale of bonds to the public. Rather than address the trial court's ruling that Malkasian's initiative was within the initiative power, the Court of Appeals determined that since the matter now had "evolved" into a postelection challenge to the voter approved initiative, Malkasian was an improper defendant.

¶ 4 We disagree with the Court of Appeals' characterization of this case. The fact that the timing of this review is postelection does not alter the nature of the claim brought by Sequim—this case was filed as, and continues to be, a challenge to an initiative as exceeding the initiative power, contravening authority given to the city council to finance projects for the residents of Sequim.

¶ 5 As we recently affirmed in Coppernoll v. Reed, 155 Wash.2d 290, 299, 119 P.3d 318 (2005), preelection challenges regarding the scope of the initiative power address the fundamental question of whether the subject matter of the measure was "proper for direct legislation." Postelection events do not further sharpen the issues—the subject matter of the proposed measure is either proper for direct legislation or it is not. Id. We find that the initiative here is indeed beyond the scope of the initiative power of the residents of Sequim. Accordingly, we reverse that portion of the Court of Appeals' ruling dismissing the appeal, as well as the trial court's summary judgment in favor of Malkasian, and hold that the initiative is invalid as it exceeds the initiative power.

FACTS

¶ 6 The facts in this case are not in dispute. On October 22, 1996, the city, acting through its city council, brought suit pursuant to chapter 7.24 RCW, the Uniform Declaratory Judgments Act, regarding a proposed initiative entitled, "the Ratepayer's Responsibility Act." The proposed initiative would impose additional requirements on revenue bonds issued by the city. The proposed initiative would require the city council of Sequim to obtain ratification by the voters before issuing citywide revenue bonds authorized under RCW 35.41.030.² The proposed initiative provided limited exceptions for bonds and warrants that had been ratified by voters at a prior election or approved by each citizen accepting a future obligation. In addition, under the proposed initiative such revenue bonds would also be subject to all regulations and laws applicable to general obligation bonds regarding notification, publication, and election.

¶ 7 Prior to the proposed initiative being placed on the ballot, the city sought a declaratory judgment that the proposed initiative was beyond the scope of the initiative power of the residents of Sequim and was thus not proper for direct legislation. The city argued that the proposed initiative was beyond the scope of the initiative power because under chapter 35.41 RCW the legislature vested the legislative body of the city (i.e., its city council) with the power to authorize revenue bonds, and not the city itself. The city also sought an injunction prohibiting an election on the proposed initiative and any other further relief the court deemed just. Clerk's Paper (CP) at 296-301. The city served Paul Malkasian as defendant in the action. Malkasian was leading the effort regarding the proposed initiative. In a letter requesting that the proposed initiative be placed on the ballot, Malkasian identified himself as the chairperson of an unincorporated group, "Partners in Government." CP at 303. On behalf of this group, Malkasian spearheaded and coordinated the gathering of signatures for the initiative and the circulation of the initiative. He attended meetings of the city council where the initiative was discussed and delivered the initiative and signatures to the city clerk.³

¶ 8 Both the city council and Malkasian moved for summary judgment on the narrow issue as to whether the initiative was beyond the scope of the relevant initiative power. After a hearing, the trial court granted Malkasian's cross-motion for summary judgment, holding that the initiative was within the initiative power of the residents of the city. The trial court also ordered the city to place the initiative on the ballot. The city sought immediate appellate review and requested a stay, which the Court of Appeals denied.

¶ 9 Both parties briefed the issue in the Court of Appeals prior to election. However, after the election, Malkasian filed a motion to dismiss with the Court of Appeals, claiming that the case was moot. The Court of Appeals denied Malkasian's motion to dismiss but did not address the merits. Instead, the Court of Appeals determined that this was a "postelection" challenge and remanded to the trial court because it claimed that "the record on appeal is insufficient for adequate and appropriate review of the city's challenge" to the new ordinance. Resp't's Suppl. CP at 65.

¶ 10 On remand, the trial court dismissed the case on procedural grounds, finding that Malkasian was not the proper defendant to defend all aspects of the ordinance. The trial court also awarded costs to Malkasian but did not grant Malkasian's request for attorney fees finding no statutory authority to do so.

¶ 11 Following the remand, the Court of Appeals again declined to decide the validity of the initiative. Instead, the Court of Appeals held that as a postelection case, the city had standing to bring the action under chapter 7.24 RCW but that Malkasian was an improper defendant to defend all issues surrounding the validity of the ordinance. The Court of Appeals also declined to award Malkasian attorney fees. See City of Sequim v. Malkasian, 119 Wash.App. 654, 79 P.3d 24 (2003).

¶ 12 Malkasian petitioned this court for review on the issue of the city's standing postelection and as to his attorney fees. The city cross-petitioned, asking this court to review the validity of the initiative.⁴ We granted review on all issues raised by the parties. Washington State Association of Municipal Attorneys filed an amicus curiae brief in support of the city.

DISCUSSION

1. Mootness of Preelection Challenge

¶ 13 The city contends that the narrow issue of whether the initiative was beyond the scope of the initiative power granted to the residents of Sequim, an action it brought before the election was held, is not moot and therefore is properly in front of this court. Malkasian argues that because an intervening election occurred in which the voters approved the initiative, this case is transformed into a postelection challenge and the subject matter challenge is moot. He is incorrect.

¶ 14 An issue is moot if the matter is "purely academic." State v. Turner, 98 Wash.2d 731, 733, 658 P.2d 658 (1983) (quoting Grays Harbor Paper Co. v. Grays Harbor County, 74 Wash.2d 70, 73, 442 P.2d 967 (1968)). However, an issue is not moot if a court can provide any effective relief. Turner, 98 Wash.2d at 733, 658 P.2d 658 (citing Pentagram Corp. v. City of Seattle, 28 Wash. App. 219, 223, 622 P.2d 892 (1981)). See also 13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3533.3, at 261 (2d ed. 1984) ("The central question of all mootness problems is whether changes in the circumstances that prevailed at the beginning of litigation have forestalled any occasion for meaningful relief."); Church of Scientology of Cal. v. United States, 506 U.S. 9, 13, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (the availability remedy need not be fully satisfactory to avoid mootness).

¶ 15 Malkasian argues that the issues relevant in a preelection review automatically became moot when the election was held, relying on State ex rel. Jones v. Byers, 24 Wash.2d 730, 167 P.2d 464 (1946). That case has no application, however, given the facts of this case.

¶ 16 In Jones, a petitioner sought a restraining order to stop a vote on a measure that would dissolve a school district and in its place form a new school district through consolidation. The petitioner maintained that the various...